United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
G. Koeltl United States District Judge.
defendant, Blanca Torres Mutt, has moved to dismiss the
Amended Complaint for failure to prosecute pursuant to
Federal Rule of Civil Procedure 41(b) or, in the alternative,
as a sanction for failure to comply with this Court's
Orders pursuant to Federal Rule of Civil Procedure
37(b)(2)(A). The plaintiff, Moises Ortega, proceeding pro
se, has failed to respond to the motion. It is plain
that the case should be dismissed for failure to prosecute
pursuant to Federal Rule of Civil Procedure
Rule of Civil Procedure 41(b) authorizes a district court to
“dismiss a complaint for failure to comply with a court
order, treating the noncompliance as a failure to
prosecute.” Simmons v. Abruzzo, 49 F.3d 83, 87
(2d Cir. 1995). A district court contemplating dismissal of a
plaintiff's claim for failure to prosecute and/or to
comply with a court order pursuant to Rule 41(b) must
1) the duration of [the] plaintiff's failures or
noncompliance; 2) whether [the] plaintiff had notice that
such conduct would result in dismissal; 3) whether prejudice
to the defendant is likely to result; 4) [the court's]
interest in managing its docket against [the] plaintiff's
interest in receiving an opportunity to be heard; and 5) . .
. the efficacy of a sanction less draconian than dismissal.
Baffa v. Donaldson, Lufkin & Jenrette Sec.
Corp., 222 F.3d 52, 63 (2d Cir. 2000). “No one
factor is dispositive” in determining the proper
outcome and the Court must weigh all five factors in
determining whether dismissal is appropriate under Rule
41(b). United States ex rel. Drake v. Norden Sys.,
375 F.3d 248, 254 (2d Cir. 2004); see also Avila v.
Comm'r of Soc. Sec., No. 15-CV-2456 (JGK), 2016 WL
1562944, at *3 (S.D.N.Y. Apr. 18, 2016).
unnecessary to catalogue in detail all of the ways in which
the plaintiff has failed to prosecute this action. Briefly,
the plaintiff has failed to engage in the discovery process
in any meaningful way. See, e.g., Dervin Decl.
¶¶ 4-5, 7. For example, pursuant to the Original
Scheduling Order dated September 15, 2015, the
plaintiff's initial disclosures were to be due on October
16, 2015, with all discovery to be completed by February 26,
2016, see Dkt. 14; more than seventeen months later,
the plaintiff's initial disclosures, as well as his
responses to even basic discovery requests, remain
outstanding. See, e.g., Dervin Decl. ¶¶
a conference before this Court on April 19, 2016, to address
the plaintiff's failure to engage in discovery,
see Dkt. 19, this Court issued a Revised Scheduling
Order that extended the close of discovery to July 15, 2016.
See Dkt. 26. The plaintiff continued to fail to
comply with his discovery obligations, see, e.g.,
Dervin Decl. ¶¶ 17-18, prompting the defendant to
move to compel discovery and to seek another discovery
extension. Dkt. 28.
another conference before this Court on July 21, 2016, this
Court extended the close of discovery to October 28, 2016 to
provide the plaintiff time to retain counsel, and ordered the
plaintiff to provide the defendant with initial disclosures
and other discovery materials by September 2, 2016, and to
“provide answers to interrogatories and documents
requests to the defendants” by September 16, 2016. Dkt.
33. This Court warned that the “plaintiff is required
to participate in discovery. Failure to participate in
discovery will result in dismissal of the plaintiff's
case.” Dkt. 33 (emphasis added).
plaintiff ignored these deadlines. See, e.g., Dervin
Decl. ¶ 22. On October 19, 2016, the defendant filed a
letter motion to dismiss the case for failure to prosecute.
Dkt. 35. In response, on October 24, 2016, this Court ordered
the plaintiff to comply with certain discovery obligations by
November 25, 2016, and extended the close of discovery to
December 9, 2016. Dkt. 36. The Court advised that, “If
the parties do not comply with their discovery obligations,
the parties may move for sanctions or any other appropriate
relief, including the dismissal of this case, or a default
judgment.” Dkt. 36. The plaintiff again ignored the
Court's directives, see, e.g., Dervin Decl.
¶ 27, and this motion followed. The Court advised that
the plaintiff should respond to the motion by February 13,
2017, see Dkt. 38, which the plaintiff has not done.
case cannot proceed without the plaintiff's prosecution
of it and his availability and willingness to respond to
discovery requests.” Beauford v. Doe #1, No.
04 CIV. 7533 (JGK), 2007 WL 549432, at *2 (S.D.N.Y. Feb. 16,
2007). The plaintiff's conduct during the preceding
approximately year and a half clearly warrants dismissal for
failure to prosecute, especially in light of this Court's
repeated reminders with respect to the plaintiff's
discovery obligations and the warnings that failure to comply
with those discovery obligations would result in dismissal.
See, e.g., Avila, 2016 WL 1562944, at *3;
Wingate v. Ctr., No. 12 CIV. 2134 (JGK), 2014 WL
3346319, at *1 (S.D.N.Y. July 1, 2014); Waters v.
Camacho, 288 F.R.D. 70, 71 (S.D.N.Y. 2013); Varney
v. Batman, No. 08cv9702 (SHS), 2012 WL 1080137, at *1
(S.D.N.Y. Mar. 30, 2012).
Court has considered various alternatives and it is clear
that dismissal without prejudice is a reasonable, lesser
sanction, rather than dismissal with prejudice. Any prejudice
to the defendant from awaiting the plaintiff's discovery
responses has been minor. See LeSane v. Hall's Sec.
Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001)
(“[T]here is no evidence in the record that
plaintiff's delay . . . caused any particular, or
specially burdensome, prejudice to defendants beyond the
delay itself.”). “[U]nder the circumstances
described above, the lesser sanction of dismissal without
prejudice (rather than with prejudice) is appropriate in
order to strike the appropriate balance between the right to
due process and the need to clear the docket and avoid
prejudice to defendant by retaining open lawsuits with no
activity.” Amoroso v. County of Suffolk, No.
08 Civ. 826 (JFB), 2010 WL 2985864, at *3 (E.D.N.Y. July 21,
2010). Ultimately, “[d]ismissal without prejudice,
rather than dismissal with prejudice, is proper because
courts considering dismissal for failure to prosecute
pursuant to Rule 41(b) must consider the efficacy of lesser
sanctions.” Wingate, 2014 WL 3346319, at *1
(citing Reeder v. Hogan, 515 F. App'x 44 (2d
Cir. 2013) (summary order)).
Amended Complaint is dismissed without prejudice for failure
to prosecute. The Clerk of the Court is directed to enter
judgment and to close this case. The Clerk is also directed
to close all pending motions.